NOORUL ARFIN, J.-Sodho, aged 28 years, was tried for the murder of one Jamal by giving a hatchet blow on the latter's head and was consequently convicted on a charge under section 302, P. P. C.
And sentenced to death by the Additional Sessions Judge, Tharparkar at Sanghar: The convict has appealed to this Court and his death sentence has also come for confirmation under section 374 of the Criminal Procedure Code.
2. Before referring to the facts of the case it will be conve--nient to mention here the relationship between the complainant party and the appellant. The appellant is the brother's son of P. W. Haji Adho. P. W. Allah Bachayo Khaskheli is Haji Adho's son-in-law. The deceased Jamal was the son-in- law of this prosecution witness, namely, Allah Bachayo Khaskheli. Sodho is also related directly to this prosecution witness, being the son of his sister.
3. The prosecution case is that Sodho used to live in the house of Haji Adho, but left him to live with his brother in mother village about to to three months before the occurrence of the incident which led to the prosecution of Sodho. P. W. Haji Adho has a shop adjacent to his house. On the night between 14th and 15th October 1968, i. e. Between 4 or 5 a.m. Haji Adho got up for Tahjud prayers.
He heard some noise from his shop and on going there discovered that the lock on the door of the shop towards the mosque had been broken and the latch on the door from the street side had been twisted. He called P. W. Allah Bachayo Khaskheli, who, as well as deceased Jamal and others, came to the shop. But nothing was found stolen from the shop or missing therefrom. It is alleged that a tracking party was organised as foot-prints of one person were observed. This party consisted of 10 to 15 persons and included P. W. Allah Bachayo Khaskheli as well as the deceased Jamal and according to the prosecution, one Muhammad Rahim Paggi also. The footprints are stated to have been traced to the house of Sodho's brother Sultan, in another village about 4 to 6 miles from Haji Adho's village. But none was found in Sultan's house and the foot-prints were then seen to lead to the cultivation fields outside the village. The prosecution says that the foot-prints were lost in the Bajra cultivation, whereupon the tracking party scattered to trace out the foot- prints, and in that process the deceased Jamal found Sndho and approached him shouting "thief thief". It is alleged that Sodho inflicted a hatchet blow on the head of Jamal, who fell down and then Sodho ran towards Hingoro village, where he was chased by the complainant party. The villagers of Hingoro village had, in the meantime, according to the prosecution, caught the accused, but refused to hand him over to the complainant party, whereupon the latter went to the police station, which is at about 4 miles' distance from the wardat, and accordingly First Information Report, Exh.
17, was lodged and recorded by the Police. The police came to the wardat, secured the body of Jamal, which was sent to the Medical officer for post-mortem examination. The police also arrested Sodho and secured his hatchet and the blood--stained clothes of the deceased which, later, were sent to the Chemical Analyser for examination and report, which report is Exh.
24. After investigation the accused was challaned on 1st November 1968, and later the committing Magistrate, after enquiry, committed him to the Court of the Additional Sessions Judge for trial under section 302, P. P. C.
4. The appellant denied the case of the prosecution and stated that the hand of Mst. Dadi, daughter of P. W. Allah Bachayo Khaskheli had been promised to be given to him in marriage, but that it was subsequently suspected, wrongly, ac--cording to the appellant, that he was on illicit terms with this girl and, therefore, P. W. Allah Bachayo Khaskheli went back on his promise.
According to the appellant, on the night of the alleged attempt at house-breaking into Haji Adho's shop he was staying in the house of this witness and the next morning he left for Shahdadpur to make some purchases, but was followed by the complainant party and was beaten there but that he escaped to Hingoro village. The appellant denied that he was armed with a hatchet, but he admitted that the police had secured blood- stained clothes from his person, for which-the appellant's explana--tion is that these clothes were stained with blood due to the beating he received from the complainant-party. The appellant's version was disbelieved by the trial Court, and consequently, the appellant was convicted and sentenced to death under section 302, P. P. C.
5. The questions which require determination are:-
(1) Whether deceased Jamal was murdered ?
(2) Whether the appellant Sodho committed this murder ?
6. As regards the first point, the killing of Jamal is not denied by the appellant's learned Advocate before us. Even otherwise this fact is proved by the ocular evidence of P. W. 2 Allah Bachayo Khaskheli, P. W. 8 Muhammad Rahim and P. W. 9 Muhammad Siddique. All these witnesses stated that the accused struck Jamal with a hatchet blow, in consequence where--of Jamal died, and the accused ran to the Hingoro village. This killing with the hatchet blow given to Jamal is corroborat-- ed by the arrest of the appellant, who took shelter in the Hingoro village and was later handed over to the police by P. W. 5, Wali Mohammad, who is supported in this version by P.W. 6, Allah Bachayo Hingoro. This latter, witness further stated that the police secured blood-stained clothes from the person of the accused and made this witness Mashir of the wardat, where he saw that the deceased had one hatchet injury on his head. The police also secured blood-stained earth from the wardat. The mashirnama to which this witness was made a Mashir is Exh.
15. The report of the Chemical Analyser, Exh. 24, states that the clothes and the hatchet produced in the Court were stained with human blood: The medical report is that of Dr. Mohan Lal, according to whom the deceased Jainal had one -incised wound 5--" x 3/4", extending deep through bone on top of head starting from vertex in middle line and covering intervening towards left side ending sharply." This injury, according to this witness, appears to have been caused by a sharp-cutting weapon like a hatchet and was at;-mortem. On internal examination, the witness found that the skull bone-under the wound was fractured and there were "multiple pieces of bone depressed down" and "brain membrane was cut--", which cut corresponded to the injury of the "brain matter" which was "seen as lacerated and injured with blood on it". According to the witness the cause of death was shock and haemorrhage, consequent to the injury was received by the deceased and described by this witness in his evidence.
7. This evidence establishes that the deceased Jamal was killed with a hatchet blow given on his skull. The question now is whether the hatchet blow, in consequence of which Jamal died, was given by the appellant and, if so, whether the appellant's at amounts to culpable homicide amounting to murder. Again the evidence of the prosecution witnesses, namely, Allah Bachayo Khaskheli, Muhammad Rahim and Siddique, the arrest of the accused with blood-stained clothes and the recovery of the hatchet establishes that the fatal hatchet blow. Was given by the appellant. But this by itself does not receive the question as to whether an offence under section 302, P. P: C. Has been made out. The story set up by the complainant party was that P: W. Haji Adho woke up for Tahjud prayers, heard "noise from his shop, called P. W. Allah Bachayo Khaskheli and he, Jamal and others entered the shop. But nothing was `found stolen or missing from the shop, although footprints were discovered which led to the house of Sodho's brother Sultan in Hingoro village and from there to the Bajra fields of Seth Cholomal, near Deh 687/3, Baradi Soomar, which place is situated in Taluka Shahdadpur, District Sanghar. There, according to the com--plainant- party, these. 10 to 15 persons dispersed to search the person suspected to have attempted theft in the shop of Haji Adho and in this process appellant Sodho was discovered in the field, but he escaped after giving the fatal hatchet blow to Jamal. This story appears to be improbable. It should be noted that P. Ws. Haji Adho, Allah Bachayo Khaskheli, the deceased Jamal and the appellant Sodho are related inter se as mentioned above. Likewise, Sodho's brother Sultan bears the same relationship to these persons. Haji Adho admittedly is a person who is eighty years' old and is hard of hearing. It is difficult to believe that he could hear noise from his shop when he woke up for Tahjud prayers. Further, nothing was found stolen or missing from the shop, but even then P.
W. Allah Bachayo Khaskheli thought it necessary to organise a tracking party of 10. To 15 persons; who were admittedly armed with lathis according .To the prosecution's own version. Then the tracking party reached the house of Sultan in Hingoro village and this person is again related to P: Ws. Haji Adho and Allah Bachayo Khaskheli, being the brother: of the appellant himself. Not finding, any one in the house of Sultan, the tracking party proceeded to the culti--vation fields belonging to Seth Cholomal. We think that this sequence of events is improbable and difficult to believe. The real nature of the incident has been given out by P. W. Haji Adho, who stated, in his cross-examination, as follows:- "Accused Sodho previously used to live in my house. His brother Sodho also used to live in my house. Allah Bachayo who is husband of my daughter along with his three sons lives in a separate house. Jamal also lived in my house. Accused Sodho after going to his brother Sultan used to visit Sodho in my house: Accused Sodho used to run my shop also do his tailoring business in the same shop.
Allah Bachayo has one daughter by name Mst. Dadi whose hand was demanded in marriage by the accused. Allah Bachayo had first agreed to that proposal but subse--quently, he backed out.
Accused used to visit our house and Allah Bachayo suspected that he had developed illicit relations with Mst. Dadi and Allah Bachayo had com--plained to me about that. Allah Bachayo had further told me to Samjhot accused otherwise they would deal with him in their own way. I have weak eye-sight and I am a bit hard to hear------"
Thus, it appears that the complainant party was on hostile terms with the appellant Sodho, who was suspected of illicit relationship with Mst. Dadi, daughter of P. W. Allah Bachayo Khaskheli. The learned Advocate-General, realising the conse--quence of this aspect of the case, did his best to concentrate on the theory of the attempted theft in the shop of Haji Adho and of Sodho being suspected as a person who made this attempt, so that Sodho should not be able to set up a case under section 100 (6thly), P. P. C. That there was an assault upon him with the intention of wrongfully confining him under circumstances which induced him to believe that he will be unable to have recourse to public authorities for his release. But we pointed out to the learned Advocate- General that the whole version of attempted theft in the shop of Haji Adho and the subsequent organization of tracking party was improbable; particularly in view of the statement of P. W. Haji Adho himself that Mst. Dadi's hand had been promised to Sodho, but that P. W. Allah Bachayo Khaskheli went back on his promise, that Sodho was suspected of having illicit relationship with this girl, that P. W. Allah Bachayo Khaskheli asked Haji Adho to dissuade Sodho from having anything to do with Mst. Dadi, that Sodho's brother Sobho used to live, at the the of the incident, in Haji Adho's own house, and that Sodho himself carried on his business as tailor in Haji Adho's shop, where Sodho kept his sewing machine. Thus, the prosecution evidence itself brings out the real nature of the hostility between the complainant party on the one hand and Sodho on the other hand.
If we reject the prosecution's version of attempted theft and of Sodho being suspected as the person who made this attempt, then we are led to the conclusion that the incident in fact originated in the suspicion that Sodho and Mst. Dadi were on terms of illicit relationship. If so, then Sodho would appear to have acted in self-defence. The prosecution witnesses admit that they led a party of 10 to 15 persons to the place where the incident occurred, that the members of the tracking party were armed with lathis, that Jamal discovered Sodho in the cultivation fields and shouted and that Sodho after giving the fatal hatchet below to Jamal, ran away to take shelter in the Hingoro village. Thus, the probability which emerges from the prosecution's own evidence is that Sodho acted in self-defence. There is further evidence, again on the prosecution's side, which supports this probability. P. W. Allah Bachayo Hingoro, a resident of Hingoro village, deposed that he saw Sodho running towards his village with a hatchet in his hand and raising cries for protection, that P. W. Wali Muhammad took custody of Sodho, who was found with blood-stained clothes, that these blood-stained clothes were recovered from the person of the accused by the police, who made this witness a Mashir. This witness has also stated in cross-examination that Sodho himself had hatchet injuries on his person and that another hatchet, in addition to the one which he saw in the hand of Sodho, had been secured by the police with blood--stains thereon from the wardat. P.
W. Wali Mohammad who was sweeping the mosque in the Hingoro village at the relevant the, also deposed that Sodho had entered the village crying for protection and that he had hatchet injuries on his person and his clothes were blood-stained. This witness also stated that Sodho then and there had told him that there was a dispute on the question of marriage between Sodho and the complainant party. Both these witnesses have deposed that there were injuries on the person of Sodho. Actually a Mashirnama of these injuries was prepared, which is Exh. 13, according to which, the following injuries were found on the person of the appellant: "(1) One injury on right side cheek slightly bleeding with swelling.
(2) One injury on left arm on wrist with swelling."
These witnesses also stated that Sodho's clothes were torn. Even the Investigating Officer admitted in his evidence that there were injuries on the person of the appellant, though no medical report was obtained for this purpose, as there appears to have been no medical officer available then, so that even the dead body of Jamal had to be sent for post-mortem examination to the District of Hyderabad. In view of this evidence, it is our opinion that Sodho's case is covered by Exception 2 to section 300 of the Pakistan Penal Code, in that Sodho acted in self-defence. To us, it appears that what must have happened is that either Sodho was discovered with Mst. Dadi during the night between 14th and 15th October 1968 and was pursued by the complainant party or, as Sodho himself stated in the Court in his examination under section 342, Criminal Procedure Code, that he was suspected of illicit relationship and was followed by the complainant party on his way to Shahdadpur. Whatever may be the correct state of facts, we think there is no doubt that Sodho was pursued by the complainant party and on being surrounded by them, and receiving blows with lathis or otherwise, acted in self-defence by striking Jamal with a hatchet blow and then running for shelter to the village of his brother Sultan. Thus, Sodho cannot be said to have committed culpable homicide amounting to murder. Nevertheless, he did strike a fatal blow and with such force that one blow alone was sufficient to break the skull of Jamal and to cause the subsequent injuries, the nature of which has been noted above, and which resulted ultimately in Jamal's death.
The force which Sodho used to strike Jamal with the hatchet blow exceeded the limits of self- defence in view of the nature of the injuries caused by this blow. Though Sodho cannot be said to be guilty of culpable homicide amounting to murder, he is still liable for culpable homicide in that he caused the death of Jamal by using force which exceeded the limits of self-defence.
8. The above discussion leads us to the conclusion that the conviction and sentence of Sodho under section 302, P. P. C. Cannot be maintained. We, therefore, accept this appeal and set aside the conviction and sentence under section 302, P. P. C., but change the conviction of Sodho to one under section 304, Part II P. P. C. And sentence him' to R. L for seven years. The appeal is accepted to this extent.